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Nathan Lewin’s Take on Fulton v. Philadelphia

A major defeat for religious liberties


The Issue

After the Philadelphia City Council passed a resolution in 2018 condemning “discrimination that occurs under the guise of religious freedom,” the city terminated a 50-year-old contractual relationship with Catholic Social Services (CSS), who refused to certify same-gender couples as potential foster parents.

The Legal Wrangling

CSS and two foster parents, one of whom is named Sharonell Fulton, sued, claiming Philadelphia discriminated against their religious beliefs about traditional marriage. A US District Court ruled in favor of the city. The Third US Circuit Court of Appeals upheld that ruling. The Supreme Court last Thursday voted unanimously (9-0) to reverse the lower court rulings, saying the city’s action violated the First Amendment’s Free Exercise Clause by forcing the CSS to choose between “curtailing its mission” or approving of “relationships inconsistent with its beliefs.” The Free Exercise Clause prohibits government regulation of religious beliefs, including misuse of secular government programs to impede religious observance.

Nathan Lewin’s Role

Lewin is the founder of the Washington-based law firm Lewin and Lewin LLP and has been Orthodox Jewry’s foremost advocate at the Supreme Court for the last half century.

In an amicus curiae brief (“friend of the court”) written on behalf of the petitioners, Lewin asked the Court to overturn the lower court decision, and, alongside the petitioners, asked the Court to go one giant step further, and overrule a damaging Supreme Court precedent — Oregon v. Smith — that has undermined religious-liberty claims for the past 30 years.

In that case, the state of Oregon refused to pay unemployment benefits to Alfred Smith, an American Indian who was fired for using peyote, an illegal drug required for a religious ceremony. (That ban might be roughly equivalent to Jews being barred from using wine for Kiddush during Prohibition.) The Supreme Court set a new precedent in the Smith case — saying that government actions don’t violate the Free Exercise Clause as long as they are neutral and apply to everyone.

Lewin’s brief quoted documents in the files of Justice Harry Blackmun that are now in the Library of Congress. Blackmun, who wrote the dissenting opinion in Smith, proved that the Oregon v. Smith decision — rendered by a slim majority of five Justices — surprised the dissenters, as the Court gave no consideration to its consequences.

A Decision Written with Invisible Ink

Although the Supreme Court sided unanimously with CSS and Fulton, a six-justice majority left Oregon v. Smith intact.

In criticizing his colleagues’ failure to overturn Smith, Justice Samuel Alito wrote a scathing 72-page concurring opinion demolishing every conceivable legal and historical justification for the ruling in Smith. Alito noted that the narrow grounds for the unanimous decision in the Fulton case could easily be circumvented by Philadelphia so that “this decision might as well be written on the dissolving paper sold in magic shops.”

The Bigger Opportunity Lost

“I consider this case a major defeat for religious liberties, because it means there will be hundreds, maybe thousands of individuals who will continue to be denied religious liberties,” Lewin said. “There are many more incidents in which individuals with religious convictions have been told that in light of Oregon v. Smith, their religious observance will be overridden and denied by the courts if they try to bring a lawsuit.”

He cited a 2021 decision blocking religious anti-abortion activists from protesting in front of abortion facilities; a 2016 ruling denying a American Indian student the right to wear an eagle feather on his graduation cap; and a 2014 decision requiring religious mental-health providers to comply with laws prohibiting “conversion therapy” for the LGBTQ community.

Theoretically, with Oregon v. Smith alive and kicking, states and cities run by progressive politicians could pass laws banning bris milah or shechitah, as many European countries have done.

Where Antonin Scalia Went Sour

It was Justice Antonin Scalia, a conservative jurist appointed by President Reagan, who authored the majority opinion in Oregon v. Smith that narrowed the definition of the Constitution’s Free Exercise Clause, enabling states to enact laws that interfere with citizens’ religious practices — even without a compelling state interest — provided that they don’t specifically target religious practitioners.

When I interviewed Lewin in 2016 after Scalia passed away, Lewin called that decision “one blot on an otherwise extraordinary legal career.”

Lewin has argued dozens of cases before the Supreme Court, filed hundreds of amicus curiae briefs on behalf of the National Jewish Commission on Law and Public Affairs (COLPA), and formed personal friendships with several justices, including Scalia — a classmate of his at Harvard Law School.

Lewin told me that in his later years, Scalia expressed some regret. “He didn’t go so far as to say he would change his mind, although he had begun to express some doubt because of its broad impact.”

Why did the Supreme Court go only halfway in Fulton v. Philadelphia?

“My speculation is that it’s because of all this talk about overruling Roe v. Wade [the landmark 1973 decision that opened the doors to legal abortion]. This court is concerned if they overrule one old precedent, all their critics will say Roe v. Wade is next. That’s nonsense. Roe v. Wade isn’t going to be overruled, but this court is afraid.”

Out of Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett, only Gorsuch wrote in favor of overturning Oregon v. Smith. In retrospect, were we premature in celebrating President Trump’s three conservative appointments?

“No, I don’t think we were premature. They were properly celebrated, but the Supreme Court has become timid under the leadership of Chief Justice [John] Roberts, [a George W. Bush appointee] who is also a proponent of civil liberties. To avoid criticism of the Supreme Court, or possible action on Capitol Hill, or attacks by the progressives, the court wants to take the most neutral ground. I’m also not afraid to say it openly, that Judge Barrett was probably embarrassed to attack an opinion of Judge Scalia, whom she clerked for and admires tremendously.”

Is there any other test case on the horizon that could overturn Oregon v. Smith?

“It’s not so easy to get a test case to the Supreme Court to overrule some bad precedent. It could take five years, and who knows who will be sitting on the court by then. Fulton v. Philadelphia was an opportunity. The court said yes, we’ll support religious liberty in some totally insignificant way. It was a whiff. Now we’re stuck.”


(Originally featured in Mishpacha, Issue 866)

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